Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no.
37555/97) against the United Kingdom of Great Britain and Northern Ireland
lodged with the European Commission of Human Rights (“the Commission”)
under former Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an Irish national,
Mr Gerard Patrick O’Hara (“the applicant”), on 20 May 1997.

2. The applicant, who had been granted legal aid,
was represented by his counsel. The United Kingdom Government (“the
Government”) were represented by their Agent.

3. The applicant alleged principally that he had
not been arrested on a reasonable suspicion that he had committed an
offence, that he had not been brought promptly before a judge or other
judicial officer and that he did not have an enforceable right to compensation
in respect of these matters. He relied on Article 5 §§ 1, 3 and 5
of the Convention.

4. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11). The application was allocated
to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 §
1.

5. By a decision of 14 March 2000, the Chamber
declared the application partly admissible [Note by the Registry. The Court’s decision is obtainable
from the Registry].

6. The applicant and the Government each filed
observations on the merits (Rule 59 § 1).

7. A hearing took place in public in the Human
Rights Building, Strasbourg, on 12 June 2001 (Rule 59 § 2).

8. The applicant was, and still is, a prominent
member of Sinn Fein. He has been arrested by the police on a number
of occasions and has issued proceedings relating to his allegations, inter alia,
of arbitrary arrest, assault and ill-treatment arising out of six incidents.
In proceedings lodged for incidents in 1988 and on 19 March 1993, he
received an award of damages (amount unspecified). In or about January
1994 he was awarded damages of 2,500 pounds sterling (GBP) for an incident
in Guildhall Square on 16 March 1993 when the judge found that he had
been wrongfully arrested by police officers who had purported to arrest
the applicant for obstruction in failing to give his name when in fact
they were fully aware of his identity. This case concerns his arrest
in 1985 in relation to the murder of Mr Kurt Konig.

9. Kurt Konig was a German citizen working for
the caterers of canteens in police stations in Londonderry. He was murdered
on 21 November 1985. The Provisional IRA claimed responsibility for
his death.

10. The Government submitted that Special Branch
received intelligence that the applicant and three other persons were
involved in the murder. The intelligence derived from four informants
who had proved reliable in the past and had provided information leading
to seizures of explosives or firearms and to prosecutions. None of the
informants had a criminal record. The information given by these four
informants was consistent, in that all gave the same names as being
involved, and independent, in that none was aware of the existence of
the others and each gave the information at separate meetings with police
officers.

11. Detective Superintendent R. of the Royal Ulster
Constabulary (“the RUC”) was briefed by Special Branch concerning
this intelligence that the applicant was a member of the Provisional
IRA and had been implicated in the murder.

13. On 28 December 1985, at about 6 or 6.15 a.m.,
Detective Constable S. visited the applicant’s house and conducted
a search. At the conclusion of the search, at 8.05 a.m., S. arrested
the applicant. He told the applicant that he was arresting him under
section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions)
Act 1984 (“the 1984 Act”) which empowered a police constable to
arrest, without a warrant, a person whom he had reasonable grounds for
suspecting of being concerned in the commission, preparation or instigation
of acts of terrorism.

14. The applicant was taken to Castlereagh Detention
Centre where he was questioned about his possible membership of the
IRA, his suspected involvement in Kurt Konig’s murder and also his
possible involvement in the murder of two soldiers on 1 April 1982.
He was interviewed on thirty-four occasions. He did not respond to any
questions. According to the Government, the first interview occurred
on 28 December 1985 at 11.50 a.m., at the start of which he was told
that the police were enquiring into his involvement with the Provisional
IRA and related matters. Police notes provided by the Government record
that during the next interview, from 2.05 to 4 p.m., the interrogating
officers told the applicant that they were making enquiries in relation
to his membership of the IRA and the murder of Kurt Konig.

15. On 29 December 1985 the Secretary of State
for Northern Ireland extended the applicant’s period of detention
beyond the initial 48-hour period, by five days. The applicant was released
without charge on 3 January 1986 at 9 p.m., after six days and thirteen
hours in custody.

16. By a writ issued on 20 August 1986 against
the Chief Constable of the RUC, the applicant instituted a civil action
for damages before the High Court in Northern Ireland in respect of, inter alia,
assault, seizure of documents, false imprisonment and unlawful arrest.

17. Before the High Court, the submissions of
the applicant’s counsel concentrated, as the trial judge found, on
the issues of assault and confiscation of documents. He did however
raise the argument, in the context of the lawfulness of the arrest,
that Detective Constable S. did not have sufficient grounds for suspicion
that the applicant had committed an offence to justify the arrest. The
evidence before the court from Detective Constable S. was to the effect
that he attended a briefing at 5.30 a.m. on 28 December 1985 in which
he was told that he was to carry out a search to find evidence and arrest
persons, including the applicant, suspected of involvement in the murder
of Kurt Konig. He had been told by his superior officer, Inspector B.,
at that briefing that the applicant was involved in the murder and stated
that these were the reasonable grounds for suspecting the applicant.
He did not state that Inspector B. had told him the grounds for his
own suspicion, nor was he asked about that matter by counsel for either
party. It was common ground that the murder was a terrorist offence.
The superior officer was not called as a witness in the proceedings.

18. On 14 November 1990 Judge McCollum found that
there had been an unlawful taking of the applicant’s notes by a police
officer and awarded Mr O’Hara GBP 100 in damages. He rejected the
applicant’s claims of assault and ill-treatment, finding that he had
not satisfied him on the balance of probabilities that his version of
events was right and that of the police officers wrong.

As regards the allegations of wrongful arrest,
the judge noted:

“... while [the applicant’s counsel] submitted
that the officer who arrested the [applicant] was required, in order
to render the arrest lawful, in addition to holding the suspicion grounding
the arrest of the [applicant], [to] have reasonable grounds for that
suspicion, based on his own knowledge of facts giving rise to that suspicion.
He accepted that both Mr Justice Carswell and the Lord Chief Justice
had previously rejected the same submission in similar cases.

While he reserved his position on this issue
he made no new submissions and produced no new arguments to me which
would cause me to depart from the reasoning in their decisions, and
in the circumstances I am satisfied in this case on the evidence of
Detective Constable [S.] that as a result of the information he had
been given he had reasonable grounds for suspecting that the [applicant]
had been concerned in the commission, preparation or instigation of
acts of terrorism.

Cross-examination of the detective constable
did not probe the details which had been disclosed to Detective Constable
[S.] in the course of the briefing during which he was supplied with
this information.

I find on the evidence that the detective constable
had a suspicion that the [applicant] was involved in the murder of Kurt
Konig and that this suspicion was reasonably based on information given
to him by a superior officers at the briefing that morning.

Either party could have elicited details of the
briefing, not as truth of the matters disclosed, but as relevant on
the issue of the reasonableness of the suspicion held by the arresting
officer. Proof of the lawfulness of the arrest lies on the defendant.

I would not wish to lay down the proposition
that reasonable suspicion could in all circumstances be based on the
opinion of another officer expressed without any supporting allegations
of fact. But it does seem to me that a briefing officially given by
a superior officer would give reasonable grounds for suspicion of the
matters stated therein. The fact that I have such scanty evidence of
the matters disclosed to Detective Constable [S.] means that I am only
just satisfied of the legality of the arrest, but I am fortified in
my view by the lack of detailed challenge in cross-examination as to
the nature of the information given to him.

The main issue between the parties is as to whether
the [applicant] was assaulted and mistreated during the period of his
detention ...”

19. On 24 October 1990, the applicant gave notice
of appeal to the Court of Appeal in Northern Ireland concerning the
claim of unlawful arrest and false imprisonment.

20. On 6 May 1994 the Court of Appeal dismissed
the appeal, upholding the decision of the High Court that reasonable
suspicion could be derived from information provided by a superior officer
and that the arrest was lawful.

“Notwithstanding his concern that more detail
of the briefing had not been given, the learned trial judge was able
to conclude:

‘(1) that the arresting officer ... did have a suspicion that the
[applicant] was involved in a terrorist murder and it was implicit that
that suspicion was genuinely held by him;

and (2) that the official briefing which he had attended given by [his
superior officer] gave him reasonable grounds for that suspicion.’

These were factual findings and clearly contained
in our view all the essential proofs that the respondent was required
to adduce to constitute lawful arrest under section 12(1)(b) of the
Act.

[Applicant’s counsel] submitted that this was
not the case. The source of the suspicion and the reasonable grounds
for it must be before the court, namely evidence from the briefing officer,
Inspector [B.], as to the grounds on which he suspected the [applicant]
of being involved in the commission, preparation and instigation of
acts of terrorism. It would be unjust, he contended, if section 12 could
give Inspector [B.] protection from liability for false imprisonment
if the Inspector himself had not reasonable grounds for the suspicion.
The first part of this submission flies in the face of the authorities
as we have said. The second part, so far as this case is concerned,
seems to be hypothetical in that the regularity or the bona fides of
the ‘official briefing’ were not questioned. No factual foundation
for such a case was made out ...

We consider that the decision of the learned
trial judge was correct. The information given at the briefing to the
arresting officer was admissible and although, in his words, ‘scanty’
it was sufficient to constitute the required state of mind of an arresting
officer under section 12(1)(b) of the Act.”

21. An appeal to the House of Lords against the
decision of the Court of Appeal was dismissed on 12 December 1996. In
his judgment, with which the other judges agreed, Lord Hope of Craighead
held that it was not necessary for an arresting officer to possess all
the information which had led to the decision to arrest, but that the
arresting officer must have equipped himself with sufficient information
so that he had reasonable cause to suspect before exercising the power
of arrest. The information acted upon by the arresting officer need
not be based on his own observations, as he is entitled to form a suspicion
based on what he has been told; his reasonable suspicion may be based
on information which has been given to him anonymously, or it may be
based on information which turns out later to be wrong. While the evidence
about the matters disclosed at the briefing was indeed scanty, he found
that the trial judge was entitled to weigh up the evidence in the light
of the surrounding circumstances and, having regard to the source of
that information, and to draw inferences as to what a reasonable man,
in the position of the independent observer, would make of it.

22. Lord Steyn stated, inter alia, concerning the general principles:

“Certain general propositions about the powers
of constables under a section such as section 12(1) can now be summarised.
(1) In order to have a reasonable suspicion the constable need not have
evidence amounting to a prima facie case. Ex hypothesis one is considering
a preliminary stage of the investigation and information from an informer
or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay
information may therefore afford a constable reasonable grounds to arrest.
Such information may come from other officers ... (3) The information
which causes the constable to be suspicious of the individual must be
in existence to the knowledge of the police officer at the time he makes
the arrest. (4) The executive ‘discretion’ to arrest or not ...
vests in the constable, who is engaged on the decision to arrest or
not, and not in his superior officers.

Given the independent responsibility and accountability
of a constable under a provision such as section 12(1) of the Act of
1984 it seems to follow that the mere fact that an arresting officer
has been instructed by a superior officer to effect the arrest is not
capable of amounting to reasonable grounds for the necessary suspicion
within the meaning of section 12(1). It is accepted, and rightly accepted,
that a mere request to arrest without any further information by an
equal ranking officer, or a junior officer, is incapable of amounting
to reasonable grounds for the necessary suspicion. How can the badge
of superior officers and the fact that he gave an order make a difference?
... In practice it follows that a constable must be given some basis
for a request to arrest someone under a provision such as section 12(1),
e.g. a report from an informer.”

“(1) Subject to sub-section (2) ..., a constable
may arrest without warrant a person whom he has reasonable grounds for
suspecting to be:

...

(b) a person who is or has been concerned in the
commission, preparation or instigation of acts of terrorism to which
this Part of this Act applies;

...

(4) A person arrested under this section shall
not be detained in right of the arrest for more than forty-eight hours
after his arrest; but the Secretary of State may, in any particular
case, extend the period of forty-eight hours by a period or periods
specified by him.”

24. This provision sets a test of an honest suspicion
upon reasonable grounds, involving an objective element. Domestic case-law
indicates that an arrest will be unlawful where, although there was
an honest suspicion on the part of the arresting officer, that suspicion
was not objectively reasonable (see, for example, Foulkes v. Chief Constable of the Merseyside Police [1998]
3 All England Law Reports 705).

25. Although section 12 concerns the suspicion
held by the arresting officer, where a briefing officer has told an
arresting officer that there is reliable information when there is not,
the Chief Constable may become vicariously liable for a wrongful arrest,
on behalf of the briefing officer, not the arresting officer (see Clarke v. Chief
Constable of North Wales Police, 5 April 2000).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5
§ 1 OF THE CONVENTION

26. The applicant complained about his arrest
on 28 December 1985, relying on Article 5 § 1 of the Convention, the
relevant parts of which provide:

“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;

...”

A. Submissions of the parties

27. The applicant submitted that, as he had never
been a member of the IRA or been involved in the murder, the police
could not have received reliable information to that effect. He pointed
out that it was never suggested to him during his interviews with the
police that they had information from any source implicating him in
this way or regarding the nature of his alleged involvement. The Government
had not provided any documentation or details to support their bare
assertion that any such information was received.

28. The applicant alleged that his arrest and
detention by the police was to harass him and put pressure on him as
he was a prominent member of Sinn Fein. He stated that he had been arrested
on at least thirty occasions and detained for various periods of time
and had successfully claimed compensation for wrongful arrest and detention.
In these circumstances, where there was a real possibility that the
police were motivated by malice, particular care should be taken in
assessing the sufficiency of the information provided regarding the
grounds of suspicion.

29. The applicant argued that domestic law, by
restricting the courts’ examination to the arresting officer’s mind
instead of the objective facts, provided virtually no protection against
arbitrary arrest. It permitted the use of an arresting officer as a
tool in a “planned arrest” scenario. As a result of the approach
by the domestic courts, if the information given by a briefing officer
to the arresting officer was sufficient to generate an honest suspicion,
it was also probably sufficient to create one that was reasonable. It
was impossible in practical terms for an applicant to prove misfeasance
by the superior officer for misleading the arresting officer. Nor in
any event was it for the applicant to prove a lack of reasonable grounds
for arrest in the domestic proceedings, but rather for the defendant
police authorities to establish the lawfulness of the arrest by calling
the appropriate witnesses and producing the relevant documentary records.

30. In the applicant’s view, the lack of protection
against arbitrariness was shown in this case by the evidence that the
police had been actuated by malice, having arrested the applicant on
previous occasions, and at no stage during the interviews did they suggest
that they had any information from any source implying that the applicant
was a member of the IRA or implicating him in the murder of Mr Konig;
nor had they given any indication of the nature of his alleged role
in that murder. There had been insufficient material disclosed in this
case for the Court properly to be satisfied of the reasonableness of
the alleged suspicion, the mere reference to the alleged existence of
information from anonymous informers being untested or substantiated
in any way. It would be possible, he argued, for the Government to provide
notes, summaries or other documents edited and anonymised to protect
the informer as had been done in, for example, the Bloody Sunday Inquiry.

31. The Government submitted that the applicant’s
arrest was in conformity with Article 5 § 1 (c) of the Convention,
as Detective Constable S. reasonably suspected the applicant of being
involved in the murder of Kurt Konig. The basis of his reasonable suspicion
was a briefing which he had attended given by a superior officer. It
was common ground in the domestic courts that S. subjectively had the
necessary suspicion, as was the fact that Kurt Konig had been murdered
in a terrorist offence. As domestic law had been changed to reflect
the test of reasonable as opposed to honest suspicion, a finding by
the domestic courts that an arrest was lawful indicated that the requirements
of Article 5 § 1 (c) had been complied with, unless the domestic courts
had wrongly applied the domestic law. In that context, they drew the
Court’s attention to the fact that the domestic courts had the benefit
of hearing the oral testimony of witnesses, tested under cross-examination.
The arresting officer had therefore been heard but, as the focus of
the applicant’s claim was on the alleged assault, the applicant did
not in fact seek any further elucidation of the background to the arrest,
such as seeking to cross-examine the other officers involved in the
arrest. In particular, no allegation of bad faith was made against the
arresting or briefing officers. Nor in fact did the applicant cross-examine
the arresting officer as to what occurred at the briefing.

32. The Government stated that the information
passed on at the briefing derived from high-grade intelligence provided
by reliable informants passed on to officers of the Special Branch to
the effect that the applicant and three others were involved in the
murder and that the applicant was a member of the IRA. There were no
reasons for doubting the veracity of this information, which was sufficient
for the purposes of Article 5 § 1 (c) as it gave details of the nature
of the information provided and some details about its reliability.
It was of overriding importance that further details which might prejudice
an intelligence source, placing him at risk or jeopardising the free
flow of information to the police, should not be disclosed.

33. The Government further pointed out that, under
domestic law, only the facts and matters known to the arresting officer
were taken into account under section 12(1)(b) of the 1984 Act. However,
if the information was shown not to be true and had been maliciously
provided, the arrested person would be entitled to compensation in an
action for false imprisonment against an officer who acted maliciously.
This ensured the function of preventing arbitrary arrest either by the
arresting officer or his superior.

B. The Court’s assessment

34. The Court emphasises that the “reasonableness”
of the suspicion on which an arrest must be based forms an essential
part of the safeguard against arbitrary arrest and detention laid down
in Article 5 § 1 (c) of the Convention. This requires the existence
of some facts or information which would satisfy an objective observer
that the person concerned may have committed the offence, though what
may be regarded as reasonable will depend on all the circumstances of
the case (see Fox, Campbell and Hartley v. the United Kingdom, judgment of
30 August 1990, Series A no. 182, p. 16, § 32).

35. In that context, terrorist crime poses particular
problems, as the police may be called upon, in the interests of public
safety, to arrest a suspected terrorist on the basis of information
which is reliable but which cannot be disclosed to the suspect or produced
in court without jeopardising the informant. However, though Contracting
States cannot be required to establish the reasonableness of the suspicion
grounding the arrest of a suspected terrorist by disclosing confidential
sources of information, the Court has held that the exigencies of dealing
with terrorist crime cannot justify stretching the notion of “reasonableness”
to the point where the safeguard secured by Article 5 § 1 (c) is impaired.
Even in those circumstances, the respondent Government have to furnish
at least some facts or information capable of satisfying the Court that
the arrested person was reasonably suspected of having committed the
alleged offence (see Fox, Campbell and Hartley, cited above, pp. 16-18, §§ 32-34).

36. It may also be observed that the standard
imposed by Article 5 § 1 (c) does not presuppose that the police have
sufficient evidence to bring charges at the time of arrest. The object
of questioning during detention under sub-paragraph (c) of Article 5
§ 1 is to further the criminal investigation by way of confirming or
dispelling the concrete suspicion grounding the arrest. Thus facts which
raise a suspicion need not be of the same level as those necessary to
justify a conviction, or even the bringing of a charge which comes at
the next stage of the process of criminal investigation (see Brogan and Others v. the United Kingdom, judgment of 29 November
1988, Series A no. 145-B, p. 29, § 53, and Murray v. the United Kingdom, judgment of 28 October 1994,
Series A no. 300-A, p. 27, § 55).

37. In the present case the Court recalls that
the applicant was arrested by Detective Constable S. on suspicion of
having committed a terrorist offence, namely the murder of Mr Konig.
After six days and thirteen hours in detention, during which time he
was questioned by police officers without making any reply, the applicant
was released. The lawfulness of the arrest was challenged by the applicant
in domestic proceedings, where the courts rejected his complaints.

38. The Court notes, first of all, that the standard
of suspicion set by domestic law for arrest is that of honest suspicion
on reasonable grounds (section 12(1)(b) of the 1984 Act – see paragraphs
23-24 above). The present application is therefore to be distinguished
from those in Fox, Campbell and Hartley and Murray (both cited above) in which the Court examined complaints
about arrest effected under provisions requiring only an honest suspicion.
In the applicant’s case, his claims that his arrest was not justified
by a suspicion, held on reasonable grounds, that he had committed an
offence, was examined by three levels of domestic courts. In those proceedings,
evidence was given by the arresting officer, Detective Constable S.,
concerning the circumstances of the arrest and the applicant was given
the opportunity to cross-examine. This must be regarded per se as providing a significant safeguard against arbitrary
arrest.

39. As regards the basis for the applicant’s
arrest, the arresting officer, Detective Constable S., gave evidence
that he had been given information by a superior officer, at a briefing
prior to the arrest, that the applicant was suspected of involvement
in the murder of Kurt Konig. No further questions were asked by the
applicant’s counsel as to what information passed at the briefing.
Nor were any steps taken to have other officers involved in the arrest
and detention, such as the briefing officer, called to give evidence.
Furthermore, the applicant did not make any requests for discovery in
relation to the existing documentary evidence concerning the arrest.
The applicant argued before the Court that it was for the defendant
police authorities to call the necessary witnesses to establish the
lawfulness of the arrest. The Government pointed out that they had no
reason to call any other officers as no issue had been raised concerning
their role in the events. The Court observes that indeed very little
(“scanty” in the words of the High Court judge) evidence was produced
concerning the background to the applicant’s arrest, largely because
at the trial level the applicant was in fact concentrating on his claims
of assault and ill-treatment. The defendants in that action, not unreasonably,
would have geared their response to the allegations which he was making.
To the extent therefore that the applicant complains before this Court
that no information was elicited during the domestic proceedings concerning
the briefing, the Court considers that this was the consequence of the
way in which the applicant pursued his claims.

40. In the proceedings before the Court, the Government
have explained that the information which led the police to arrest the
applicant was obtained independently from four separate informers, who
had proved previously reliable and whose information concerning the
murder was consistent. It was this information which was the basis of
the decision to arrest the applicant and in respect of which instructions
were given by the briefing officer to the arresting officer, Detective
Constable S. The applicant disputed that this information was in fact
received or that it could be regarded as reliable, since he was not
involved in the incident. He argued that he was arrested as part of
an arbitrary police policy which targeted him as a prominent member
of Sinn Fein. The Court recalls, however, that no challenge was made
in the domestic proceedings by the applicant to the good faith of any
of the officers involved in the arrest or detention. It was never suggested,
for example, that the arrest had been motivated by malice or was an
arbitrary abuse of power, as the applicant had succeeded in proving
concerning an incident on 16 March 1993 (see paragraph 8 above). It
had not been disputed by the applicant that a briefing had occurred,
attended by police officers, at which information was passed on concerning
the identity of persons involved in the murder of Kurt Konig and steps
taken to plan a number of arrests.

41. The Court recalls that in Fox, Campbell and Hartley (cited above, pp. 8-9, §§ 8-14),
two of the applicants had been arrested when their car had been stopped
and searched. There had allegedly been information known to the police
prior to this incident that they were suspected of being members of
the IRA and involved in intelligence gathering. The third applicant
had been arrested on suspicion of involvement in a kidnapping, without
any indication given as to the basis for the suspicion beyond reference
to sensitive material available to the police connecting him with the
incident. This was found by the Court in respect of all three applicants
not to meet the minimum standard set by Article 5 § 1 for judging the
reasonableness of an arrest of an individual. On the other hand, in Murray
(cited above, p. 28, §§ 61-62) the standard was satisfied when the
arrest of the applicant, on suspicion of involvement in the collection
of funds for the purchase of arms, was based on information provided
to the arresting officer that the applicant’s brothers had been convicted
of similar offences in the United States, which implied collaboration
with “trustworthy” persons in Northern Ireland and the applicant
was known to have visited the United States and maintained contacts
with her brothers, elements which were not necessarily incriminating
of the applicant. There may thus be a fine line between those cases
where the suspicion grounding the arrest is not sufficiently founded
on objective facts and those which are. Whether the requisite standard
is satisfied and whether the guarantee against arbitrary arrest laid
down by Article 5 § 1 (c) is thereby satisfied depends on the particular
circumstances of each case.

42. The suspicion in the present case was based
on information passed on at a police briefing by informers who identified
the applicant as one of a number of persons suspected of involvement
in a specific terrorist event, the murder of Mr Konig. There is no basis
in the material provided for the Court to reject the Government’s
submissions on this point. The arrest was therefore a pre-planned operation,
more akin to the arrest in Murray, and was based on slightly more specific detail than
in Fox,
Campbell and Hartley. In these circumstances, and having regard
to additional distinguishing elements referred to above (see paragraphs
38-40), the Court considers that the domestic courts’ approach –
that the judge was entitled on the sparse materials before him to infer
the existence of reasonable grounds of suspicion – was not incompatible
with the standard imposed by Article 5 § 1 (c) of the Convention.

43. The applicant argued, with some force, that
police officers should not be able to hide behind references to anonymous
informants by way of justifying abuse of their power of arrest. The
Court reiterates, however, that in the domestic proceedings the applicant
did not attempt to raise any complaints concerning bad faith or oppression.
His claim was based on the narrow legal argument concerning the state
of mind of the arresting officer relevant under section 12(1)(b) of
the 1984 Act. Nor is the Court persuaded that there was any immunity
conferred on other police officers, as a result of the finding by the
domestic courts, that the arresting officer had the required suspicion.
If the briefing officer or any other superior officer had deliberately
passed on misleading or inaccurate information to the arresting officer,
the police authorities would have been liable for wrongful arrest or
false imprisonment in respect of that misconduct (see paragraph 25 above).

44. The Court does not find, therefore, that the
approach of the domestic courts to the standard of suspicion in this
case removed the accountability of the police for arbitrary arrest,
or conferred on the police any impunity with regard to arrests conducted
on the basis of confidential information. In the circumstances, the
suspicion against the applicant reached the required level as it was
based on specific information that he was involved in the murder of
Kurt Konig and the purpose of the deprivation of liberty was to confirm
or dispel that suspicion. The applicant can accordingly be said to have
been arrested and detained on “reasonable suspicion” of a criminal
offence, within the meaning of sub-paragraph (c) of Article 5 § 1.

Accordingly, there has been no violation of that
provision.

II. ALLEGED VIOLATION OF ARTICLE
5 § 3 OF THE CONVENTION

45. The applicant complained that he had not been
brought promptly or at all before a judge after his arrest, relying
on Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees
to appear for trial.”

46. The Court notes that the Government have not
disputed that the applicant was held for six days and thirteen hours
before his eventual release and that this was not in compliance with
the requirement to bring an arrested person promptly before an appropriate
judicial officer. Having regard to its case-law (in particular Brogan and Others,
cited above, pp. 33-34, § 62, where detention periods exceeding four
days for terrorist suspects were found not to be compatible with the
requirement of prompt judicial control), the Court finds that there
has in this respect been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

47. The applicant also relied on Article 5 §
5 of the Convention, which provides:

“Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”

48. The Government submitted that the applicant
did have an enforceable right to compensation in the courts in respect
of unlawful arrest and detention. He did not receive compensation, however,
as the courts were satisfied that he had been lawfully arrested and
detained.

49. The applicant submitted that the requirements
for a lawful arrest in domestic law fell short of the requirements imposed
by Article 5 of the Convention and, therefore, pursuant to domestic
law, he did not have an enforceable right to compensation for the matters
of which he complained.

50. As the Court has found no violation of Article
5 § 1 (concerning the existence of reasonable grounds of suspicion
to justify the applicant’s arrest), no issue arises under Article
5 § 5 in relation to this complaint of the applicant.

51. On the other hand, the Court has found above
that there has been a breach of Article 5 § 3 of the Convention concerning
the length of time during which the applicant was detained before being
either released or brought before an appropriate judicial officer. It
is not disputed that, as this detention was in accordance with domestic
law, no enforceable right to compensation existed. In this regard, therefore,
there has been a breach of Article 5 § 5 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

52. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

53. The applicant claimed that he had suffered
non-pecuniary damage in relation to the six days and thirteen hours
which he spent in detention, referring to the allegations which he had
made in the domestic proceedings that he had been assaulted. He also
referred to the conditions of detention in Castlereagh as being inhuman
and degrading. He claimed that exemplary damages were appropriate where
those responsible for arrest had been shown to have acted in a high-handed
or oppressive manner. He claimed 20,000 to 40,000 pounds sterling (GBP),
having regard to the applicable domestic scales.

54. The Government disputed that any award should
be made for non-pecuniary damage, pointing out that the applicant’s
claims concerning assault and ill-treatment had been rejected. In so
far as any violation of the Convention were found, such finding would
in itself constitute sufficient just satisfaction.

55. The Court recalls that it has rejected the
applicant’s claim that his arrest failed to comply with Article 5
§ 1 of the Convention. There have been no findings as regards the ill-treatment
or other oppressive treatment alleged by the applicant. It has however
found a breach of Article 5 § 3 in that the applicant was detained
for more than the acceptable period before being either released or
brought before a court, and a breach of Article 5 § 5 in that he enjoyed
no enforceable right to compensation in that respect. Nevertheless,
the Court finds, in the circumstances of this case, that these findings
of a violation constitute sufficient just satisfaction.

B. Costs and expenses

56. The applicant claimed a total of GBP 29,868.25.
This included sums of GBP 15,462 for costs incurred in the domestic
legal proceedings in the High Court, Court of Appeal and House of Lords
and, in respect of the Convention proceedings, GBP 5,000 for senior
counsel, GBP 5,406 for junior counsel and GBP 3,955 for a solicitor.

57. The Government disputed that any costs incurred
in the domestic proceedings should be recoverable. They considered that
the fees claimed for two counsel were excessive and that a sum of GBP
8,000, plus any value-added tax (VAT) that may be chargeable would be
reasonable. They accepted that the amount of GBP 3,955, inclusive of
VAT, was reasonable in respect of the solicitor’s fees.

58. The Court recalls that the domestic proceedings
in respect of which the applicant makes a claim related to his complaints
about the unlawfulness of his arrest. However, this part of the application
has not resulted in any finding of a violation. The Court is accordingly
unable to make any award in this respect. In so far as the applicant’s
complaints under the Convention were therefore only partly successful,
the Court, making an equitable assessment, awards the sum of GBP 11,000,
plus any VAT that may be chargeable, for costs and expenses.

C. Default interest

59. According to the information available to
the Court, the statutory rate of interest applicable in the United Kingdom
at the date of adoption of the present judgment is 7.5% per annum.

FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been no violation
of Article 5 § 1 of the Convention;

2. Holds unanimously that there has been a violation of Article
5 § 3 of the Convention;

3. Holds unanimously that there has been no violation of Article
5 § 5 of the Convention in relation to the applicant’s complaint
under Article 5 § 1;

4. Holds unanimously that there has been a violation of Article
5 § 5 of the Convention in relation to the applicant’s complaint
under Article 5 § 3;

5. Holds unanimously that these findings of a violation constitute
in themselves sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;

6. Holds unanimously

(a) that the respondent
State is to pay the applicant, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of the
Convention, for costs and expenses, GBP 11,000 (eleven thousand pounds
sterling), plus any value-added tax that may be chargeable;

(b) that simple interest at an annual rate
of 7.5% shall be payable from the expiry of the above-mentioned three
months until settlement;

7. Dismisses unanimously the remainder of the applicant’s claims
for just satisfaction.

Done in English, and notified in writing
on 16 October 2001 pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.

S. Dollé J.-P.
Costa Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting
opinion of Mr Loucaides is annexed to this judgment.

J.-P.C.
S.D.

PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

While I share the view of the majority as regards
the violation of Article 5 §§ 3 and 5, I do not agree that there has
been no violation of paragraph 1 of the same Article.

My disagreement with the majority does not concern
the legal principles expressed in the judgment, but only their application
to the facts of this particular case. I, myself, would emphasise the
principle mentioned in paragraph 34 of the judgment, according to which

“... the ‘reasonableness’ of the suspicion
on which an arrest must be based forms an essential part of the safeguard
against arbitrary arrest and detention laid down in Article 5 § 1 (c)
of the Convention. This requires the existence of some facts or information
which would satisfy an objective observer that the person concerned
may have committed the offence, though what may be regarded as reasonable
will depend on all the circumstances of the case (see Fox, Campbell and Hartley v. the United Kingdom, judgment of
30 August 1990, Series A no. 182, p. 16, § 32)”.

In the case just cited the Court also dealt
with the situation of terrorist crime, which was described as falling
“into a special category” in respect of which “the ‘reasonableness’
of the suspicion justifying such arrests [of suspected terrorists] cannot
always be judged according to the same standards as are applied in dealing
with conventional crime” (ibid.).

But even for such cases the Court pointed out
that “the exigencies of dealing with terrorist crimes cannot justify
stretching the notion of reasonableness to the point where the essence
of the safeguard secured by Article 5 § 1 (c) is impaired” (ibid.)
and that the “Court must be enabled to ascertain whether the essence
of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently
the respondent Government have to furnish at least some facts or information
capable of satisfying the Court that the arrested person was reasonably
suspected of having committed the alleged offence”(ibid., p. 18, §
34).

Therefore, the question in this case boils down
to whether the respondent Government furnished “at least some facts
or information capable of satisfying the Court that the arrested person
was reasonably suspected of having committed the alleged offence”.
The burden is on the Government to provide evidence of such facts or
information, which must of course have existed at the time of the arrest.

It is common ground that the evidence produced
before the domestic courts by the prosecution in order to justify the
existence of reasonable suspicion against the applicant was simply that
the arresting constable was told by a superior officer that the applicant
was suspected of having been involved in the murder under investigation.
No more information was given. The arresting constable did not state
that his superior officer had told him the grounds for his own suspicion,
nor was he asked by counsel for either party.

Can we regard this concrete information placed
before the domestic courts as providing an objectively sufficient basis
for a “reasonable suspicion”? In my view, the answer must, without
any hesitation, be in the negative. If we accept the contrary, we will
be legalising a general formula for justifying any arbitrary arrest:
any arrest could always be justified by the mere statement of the arresting
constable that his superior ordered him to arrest a person because the
latter was suspected, no grounds at all being given for such suspicion.
In the absence of any information as to why the suspicion was reasonable,
how can a court decide whether the arrest was arbitrary or not?

In this case the trial judge himself described
the evidence produced before him in support of the existence of reasonable
suspicion as “scanty”. The same description was repeated in the
judgment of the House of Lords. Nevertheless, we read the following
finding in one of the judgments of the House of Lords, shared by the
majority of the judges:

“The trial judge described the evidence as
scanty. But he inferred that the briefing afforded reasonable grounds
for the necessary suspicion. In other words the judge inferred that
some further details must have been given in the briefing. The legal
burden was on the respondent to prove the existence of reasonable grounds
for suspicion. Nevertheless I am persuaded that the judge was entitled
on the sparse materials before him to infer the existence of reasonable
grounds for suspicion.”

I find that there is a good deal of speculation
in the conclusion that the trial judge did in fact infer “that some
further details must have been given in the briefing” and “that
the judge was entitled on the sparse materials before him to infer the
existence of reasonable grounds for suspicion”. Personally, I fail
to comprehend why further details relating to the reasonableness of
the suspicion must necessarily have been given in a briefing of a constable
by his superior officer which resulted in an order to arrest the applicant. Moreover I cannot understand
why the trial judge was entitled on the sparse material before him to infer the existence
of reasonable
grounds for suspicion. He did not have before him any information
at all regarding the grounds of suspicion. He only had a statement that
the arresting constable had been told by his superior that the applicant
was suspected of involvement in the murder of Kurt Konig and that the
constable had consequently been ordered to arrest the applicant.

The majority in the judgment of our Court relied
on the fact that the arresting officer was not cross-examined by the
applicant’s counsel as to what information was given at the briefing.
The majority went on to state that “nor were any steps taken to have
other officers involved in the arrest and detention, such as the briefing
officer, called to give evidence” and concluded with the following
finding: “To the extent therefore that the applicant complains before
this Court that no information was elicited during the domestic proceedings
concerning the briefing, the Court

considers that this
was the consequence of the way in which the applicant pursued his claims.”

However, the legal burden of establishing a
reasonable suspicion to the satisfaction of the judicial authorities
responsible for preventing possible abuses rests with the arresting
law enforcers, and this was expressly admitted by the House of Lords
in the relevant domestic proceedings. Therefore, the trial court had
a duty to determine whether the material produced before it was in actual
fact sufficient to satisfy the requirement of the “existence of some
facts or information capable of satisfying the court that the arrested
person was reasonably suspected of having committed the alleged offence”.
What really matters is the actual material, produced before the court,
and not the tactics used by the parties in respect of the presentation
of that material. In other words, at the end of the day, the judge has
to decide whether the relevant requirement is satisfied exclusively
on the basis of the evidence before him. Whether more or less evidence
could have been produced as a result of greater or lesser effectiveness
in the questioning by the parties would not have affected the task of
the court. In fact, this is true in respect of any determination of
factual issues by courts: they have to make findings on the basis of
the evidence before them without any speculation as to the existence
or non-existence of other evidence which might or might not have come
to light through the conduct of the proceedings by the parties.

I referred to the evidence as to the “reasonable
suspicion” produced before the domestic courts in this case at the
material time. In my view, this is the evidence which really matters
for the question in issue. Evidence produced for the first time ex post facto
before this Court is, in my opinion, irrelevant and should be disregarded
for the simple reason that so long as that evidence was available at
the time of the arrest, it should have been adduced before the competent
domestic courts in order to be assessed and decided upon by them with
reference to the question in issue. The European Court of Human Rights
cannot act as a first-instance or even as a fourth-instance court and
evaluate evidence which was never adduced before the domestic courts
in cases such as the present one.

In the proceedings before the European Court,
the Government explained that the information which led the police to
arrest the applicant was obtained independently from four separate informers,
who had proved previously reliable and whose information concerning
the murder was consistent. According to the Government it was this information
which was the basis of the decision to arrest the applicant and in respect
of which instructions were given by the briefing officer to the arresting
officer, Detective Constable S. The applicant disputed that this information
had in fact been received or that it could be regarded as reliable,
since he had not been involved in the incident. The majority seem to
have accepted this information and dismissed the position of the applicant,
mainly on the ground that “no challenge was made in the domestic proceedings
by the applicant to the good faith of any of the officers involved in
the arrest or detention”. In this connection the majority added the
general statement that “there [was] no basis in the material provided
for the Court to reject the Government’s submissions on this point”
(see paragraphs 40 and 42 of the judgment).

For my part, for the reasons I have given above,
I consider the additional information given by the Government to the
Court fifteen years after the event to be inadmissible. In any event,
it is doubtful whether the information strengthens to an adequate degree
the Government’s position, given that it does not cover the grounds
of suspicion or the nature of the applicant’s alleged involvement
in the crime in question, let alone the fact that this information was
not produced before the trial court at the material time.

In the majority’s judgment, a comparison is
made between this case and those in Fox, Campbell and Hartley and Murray v. the United Kingdom. The majority found that the arrest
in the present case was more akin to the arrest in Murray than to that in Fox, Campbell and Hartley. I would reiterate the statement
in the judgment of the majority that the question whether the guarantee
against arbitrary arrest laid down by Article 5 § 1 (c) is satisfied
depends on the particular circumstances of each case. I would add that
no two cases can be identical. Still, if a comparison on the basis of
similarities is to be embarked upon in respect of the above cases, I
believe that this case is nearer to Fox, Campbell and Hartley than to Murray, the reason being that both in this case and in the
first-mentioned case no grounds at all in support of the reasonableness
of the suspicion were submitted to the domestic courts, while in Murray
certain facts in support of the suspicion were in fact adduced in the
competent national courts.

My conclusion is that in the present case no
facts or information at all were submitted to suggest that the suspicion
against the applicant was reasonable. Therefore, the judicial supervision
of whether the guarantee against arbitrary arrest laid down by Article
5 § 1 (c) was satisfied, was rendered ineffective. I believe that the
liberty of an individual is a very important value in a democratic society
and can only be interfered with when there are objective and well-founded
reasons. It is not enough to establish a reasonable suspicion justifying an arrest on the basis of a
mere statement by the arresting constable to the effect that “my boss
suspects a person and therefore he ordered me to arrest him”. In fact
that is what happened in this case, and that is why I find that there
has been a violation of Article 5 § 1 of the Convention.

Consequently, I would have awarded the applicant
a higher amount for costs and expenses.